In the hire or
loan o f animals,
refpon-
libility is induced
by any
deviation
from the pre-
fcribed journey.
.
T h e change
o f a faddle
for another of
the fame fort
does not induce
refpon-
fibility,
exceffive and unneceffary exertion: the ufe, therefore, is reftridted to
the condition offafety, in the fame manner as the travelling upon the
public highway.
If a perfonhire an animal to carry him to a particular'place, {Medina,
for inftance,) and he go out of his way, and proceed to another
place, and then return with the animal to Medina, and it die, he is
refponfible for it. T h e fame rule alfo holds with refpedt to an animal
lent.— Some have faid that this example proceeds upon a fuppofition of
the animal being hired merely to go to Medina, (not to go and return,)
in which cafe the hirer is not, in fadt, required to reftore it to the
owner: but that where it is hired for the purpofe both of going and
coming, the hirer is in the fame predicament with a truftee who firft
fwerves from the terms Of his truft, and afterwards accords to them,
in which cafe he is not refponfible for the depofit in his hands.-—
Others, again, lay that the rule is abfolute; and confequently that
refponfibility attaches in either cafe; for there is an effential difference
between a hirer or borrower, and a truftee; becaufe the truftee is di-
redted to keep the depofit, independantly, and confequently the order
for confervation ftill remains in force after the truftee ceafes from his
deviation and reconforms“ to the terms of truft, whence he reverts to
his lituation of reprefentative of the owner ; whereas, in a cafe of hire
or loan, the hirer or borrower are directed to keep the article depend-
antly of the ufe, and not zVzdependantly; and confequently, upon the
ufe ceafing, they no longer continue reprefentatives of the owner;
whence they are not difcharged from refponfibility by their return to
Medina.— This is approved.
If a perfon hire an afs with its faddle, and fallen upon it another
faddle, of the fame fort as is commonly ufed upon fuch an afs, he is
not refponfible if the afs perifh ; becaufe where the faddle is proportionate
to the animal, the owner’ s affent extends to it, as the reftric-
tion is advantageous only in cafe of the other faddle being heavier than
the one fpecified in the contradl, when, if the afs were to perifh, the
hirer would be refponfible in proportion to the difference.— If, on the
contrary, the hirer were to fallen upon the afs a faddle o f a fort not
commonly ufed upon fuch an afs, he is refponfible for the whole value;
for as this is not included in the leflor’ s affent, it follows that
the hirer, in fo doing, adts contrary to.engagement.
If a perfon hire an afs, with its faddle, and fallen upon the afs a
pack-faddle, of a fort not commonly put upon fuch an afs, - he is in
this pafe refponfible for the whole value, of the animal, for the reafon
alleged in the example of the faddle; nay, the obligation refts upon
him in this cafe, a fortiori, fince a pack-faddle or panniers are not of
the fame nature as a r«/;#ig--faddle, and are, moreover, heavier. If,
alfo, he fallen upon the afs a.pack-faddle of a fort commonly ufed upon
fuch an afs, he is relponfible for the whole value, according to Ha-
neefa.— T h e two difciples allege that, in this inftance, he is refponfible
only in proportion as the load of the pack-faddle exceeds that of
the riding-faddle; becaufe, where the pack-faddle is of a fort commonly
put upon fuch an afs, it follows that the riding-izAAle and the
pack-faddle are equal, and confequently that the owner of the afs af-
fents,— except the latter exceed the former in weight, in which cafe
the hirer is refponfible in proportion to the excefs o f weight, as to that
the owner is not affenting.— The excefs, therefore, in this inftance,
is analogous to a cafe where the perfon who lets out an animal to hire
fpecifies the quantity of wheat he is to carry, and the hirer loads it
with a larger quantity.— T h e argument of Haneefa is that a pack-
faddle is not in the nature of a common f a d d l e i t is not fo in appearance,
fince it is more fpread upon the animal on one fide than on the
other*; nor is it fo in reality, fince a pack-faddle is for Carrying
burdens, whereas a commonffaddle is for, riding.— The hirer, there-
* T h is alludes to the particular fafliion o f the Palau, or Perfian pack-faddle,-with
which the tranflator is unacquainted. .
unlefs the
weight be different,
when
refponfibility
attaches in
proportion to
thé excefsf
I f the nature
o f the faddle
be different,
refponfibility
attaches in
tolo•
U U 2 fore,